Dwyer v Police - [2005] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DWYER v POLICE
Judgment of The Honourable Justice Bleby
28 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - PUBLIC PLACE, STREET OR THOROUGHFARE AND PLACE OF PUBLIC RESORT
Appeal against convictions for driving under influence of alcohol and driving without due care – s 47 and s 45 Road Traffic Act 1961 – Alleged offences occurred on privately owned unsealed access road – Whether access road a “road” for purposes of Act – Interpretation of s 5 Road Traffic Act 1961 – Whether road “used by” public – Whether road “open to” public – Weight to be placed on physical barrier – Not a “road” for the purposes of Act – Appeal allowed – Convictions set aside
Road Traffic Act 1961 (SA) s 5, s 5A, s 45, s 47, s 175(1), referred to.
Evans v Benson (1986) 46 SASR 317; Harrison v Hill [1932] SC (J) 13; Schubert v Lee (1946) 71 CLR 589; Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728; Marklew v Allen (1974) 9 SASR 32, applied.
McBain v Reyne (1998) 69 SASR 580, discussed.
Warren v Coombes (1979) 142 CLR 531, considered.

DWYER v POLICE
[2005] SASC 31
Magistrates Appeal

BLEBY J: The appellant was charged on complaint with four offences as follows:
1.On the 27^th day of July 2003 at Montacute in the said State, drove a vehicle namely a motor vehicle on a road namely an access road whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle. Section 47 of the Road Traffic Act, 1961.
2.On the 27^th day of July 2003 at Montacute in the said State, drove a motor vehicle on a road namely an access road whilst there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961. Section 47b of the Road Traffic Act, 1961. It is further alleged that the concentration of alcohol was 0.78 [sic] grams in a hundred millilitres of blood.
3.On the 27^th day of July 2003 at Montacute in the said State drove a vehicle namely a motor vehicle on a road namely an access road without due care. Section 45 of the Road Traffic Act, 1961.
4.On the 27^th day of July 2003 at Montacute in the said State, resisted Michael Cawthorne a police officer in the execution of his duty. Section 6(2) of the Summary Offences Act, 1953.
He pleaded not guilty to all of them. At the close of the prosecution case count 2 was dismissed by the Magistrate. After hearing evidence led by the appellant the Magistrate found him guilty of counts 1, 3 and 4. On count 1 the Magistrate imposed a fine of $700 and disqualified the appellant from holding or obtaining a driver’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dwyer v Police

Details

AGLC: Dwyer v Police [2005] SASC 31
Case: [2005] SASC 31
Decision Date: 28 January 2005

CaseChat Overview and Summary

In the matter of Dwyer v Police, the defendant appealed against convictions for driving under the influence of alcohol and driving without due care, pursuant to sections 47 and 45 of the Road Traffic Act 1961. The alleged offences took place on a privately owned, unsealed access road. The central legal issue was whether the access road qualified as a "road" under the Act, and if it was "used by" or "open to" the public. The interpretation of section 5 of the Road Traffic Act 1961 was pivotal, specifically focusing on the criteria that needed to be met for the access road to be considered a "road" within the meaning of the Act.

The court examined whether the presence of a physical barrier, which restricted public access, had any bearing on the interpretation of the Act. It was established that the road in question was not open to the public due to the existence of this barrier, and it was also not used by the public in the manner intended by the Act. The court concluded that, given the restrictive nature of the access road and the limited public use, it did not satisfy the statutory definition of a "road" as outlined in section 5 of the Act. Consequently, the convictions for driving under the influence and driving without due care were deemed invalid.

The appeal was allowed, and the convictions were set aside. This decision underscores the importance of interpreting statutory language strictly and considering all relevant factors when determining whether a particular road meets the criteria to be classified as such under the Road Traffic Act 1961. The physical barrier played a significant role in the court's reasoning, highlighting that the mere presence of a road does not automatically confer the status of a "road" under the Act if it is not accessible or used by the public in the intended manner.

Orders